Gujarat Growth Centres Devlopment Corporation Ltd., Gandhinagar V. The Income tax Officer, Ward-2, Gandhinagar

MA 131/AHD/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0155 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-05-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 13-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: T SANKAR
• Keywords: Capital asset; Revenue expenditure

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, B BENCH, AHMEDABAD BEFORE SHRI MUKUL KUMAR SHRAWAT, JUDICIAL MEMBER AND SHRI A. K. GARODIA, ACCOUNTANT MEMBER M.A.NO.130 & 131/AHD/2012 IN I.T.A. NO. 959/ AHD/2006 & 1675/AHD/2007 (ASSESSMENT YEAR 2002-03 & 2003-04) GUJARAT GROWTH CENTERS DEVELOPMENT CORPORATION LTD., 4 TH FLOOR, UDYOG BHAVAN, BLOCK NO.5, SECTOR 11, GANDHINAGAR-392017 VS. ITO, WARD 2, GANDHINAGAR PAN/GIR NO. : AAACG6988Q (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI ASHWIN SHAH, AR RESPONDENT BY: SHRI T SANKAR, SR. DR DATE OF HEARING: 05.04.2013 DATE OF PRONOUNCEMENT: 10.05.2013 O R D E R PER SHRI A. K. GARODIA, AM:- BOTH THESE MISCELLANEOUS APPLICATIONS ARE FILED BY THE ASSESSEE ALLEGING CERTAIN MISTAKES IN THE COMBINED TRIBUNAL ORDER FOR THE ASSESSMENT YEARS 2002-03 & 2003-04 AND BOTH THE MIS CELLANEOUS APPLICATIONS ARE IDENTICAL AND HENCE, THE CONTENTS OF MISCELLANEOUS APPLICATION NO.130/AHD/2012, RELATING TO ASSESSMENT YEAR 2002-03 ARE REPRODUCED BELOW: M.A.NOS.130, 131 /AHD/2012 2 MISCELLENEOUS APPLICATION WE ARE IN RECEIPT OF THE APPELLATE ORDER DATED 19-0 1-2012 ON 16- 02-2012. THERE ARE CERTAIN APPARENT MISTAKES IN THE ORDER, WHICH ARE AS UNDER: IN PARA NO. 10 10 TH LINE ON PAGE NO.7 OF THE TRIBUNAL ORDER. THE HON'BLE TRIBUNAL OBSERVED AS UNDER: 'IN CONTRADICT TO LETTER OF GIDC IT IS NOTED BY THE LEARNED CIT(A) IN ITS ORDER WHICH IS REPRODUCED BY THE TRIBUNAL IN TH IS EARLIER ORDER THAT EVEN ON 31-03-2002, NO GROWTH CENTER WAS COMPL ETELY SET-UP AND THE ASSESSEE HAD ONLY MADE PAYMENT OF RS. 1869. 41 LACS TO GIDC FOR THE PURPOSE OF SETTING UP OF GROWTH CENTRE AND SAME WAS SHOWN UNDER THE HEAD LOANS & ADVANCES AND EVEN DETA ILS OF EXPENDITURE WERE PENDING FINALIZATION BETWEEN ASSES SEE CORPORATION AND GIDC. HENCE, IN OUR CONSIDERED OPIN ION THIS LETTER DATED 27-01-2005 DOES NOT MAKE ANY CHANGE IN THE FACTS DURING THE TWO YEARS HENCE WE DO NOT FIND ANY REASO NS TO TAKE A CONTRARY VIEW IN THE PRESENT TWO YEARS.' THE HON'BLE TRIBUNAL IN PARA NO. 11 DISTINGUISHED T HE CASE OF SARABHAI MANAGEMENT ON THE GROUND THAT THE ASSESSEE IS NOT IN A POSITION TO ALLOT THE PLOTS TO THE CUSTOMERS AND TH EREFORE THE JUDGMENT ORTTON'BLFJLLRFEDIC1IONAF HIGH COURT IS OF NO HELP TO THE ASSESSEE AND THAT IT IS HELD THAT IN THIS CASE, THE FACTS ARE TOTALLY DIFFERENT. THE HON'BLE TRIBUNAL ALSO DISTINGUISHED THE CASE OF CIT V/S. E. FUNDS INTERNATIONAL INDIA 162 TAXMAN 1 (DEL ) ON THE GROUND THAT IN THE PRESENT CASE NO SUCH FACTS IS BR OUGHT ON RECORD BY THE ASSESSEE TO SHOW THAT ASSESSEE HAS TAKEN ALL STEPS NECESSARY TO OBTAIN BUSINESS INCLUDING EFFORTS FOR MARKETING AND THEREFORE THIS JUDGMENT OF HON'BLE DELHI HIGH COURT IS NOT AP PLICABLE IN THE PRESENT CASE. 3. IN PARA NO. 12 THE CONCLUSION IS DRAWN THA T THERE IS NO CHANGE IN FACTS AS COMPARED TO EARLIER YEARS. THE A PPEALS ARE DISMISSED FOLLOWING THE EARLIER YEAR ORDER OF THE T RIBUNAL. 4. WHEREAS THE HON'BLE TRIBUNAL MISAPPRECIAT ED_ THE FACTS COMPLETELY. IT WAS POINTED OUT BY THE AR WHICH IS R EPRODUCED IN PARA NO. 5 OF THE ORDER THAT EARLIER ORDER SHOULD N OT BE FOLLOWED BY POINTING OUT THE LETTER DATED 27-01-2005 ISSUED BY GIDC. THE AR ALSO SUBMITTED THAT 'COMMENCEMENT OF BUSINESS HA S NO RELATION WITH ALLOTMENT OF PLOTS. HE ALSO SUBMITTED THAT EXPLOITATION OF ASSET IS RELEVANT FOR CAPITAL ASSET BUT IN THE P RESENT CASE NO M.A.NOS.130, 131 /AHD/2012 3 CAPITAL ASSET WAS ACQUIRED AND ASSET ACQUIRED WAS S TOCK IN TRADE OF THE ASSESSEE HENCE EXPLOITATION OF ASSET IS NOT REL EVANT.' 5. AND WHEREAS AT THE TIME OF HEARING THE AR POINTED OUT THE OBJECT OF THE CORPORATION. THE OBJECT OF THE CORPOR ATION IS TO DEVELOP THE PLOTS FOR ENTREPRENEURS SO AS TO GIVE B OOST TO THE INDUSTRIAL DEVELOPMENT IN AND AROUND THE AREA. THER EFORE, IT WAS POINTED OUT THAT WHAT WAS BEEN ACQUIRED WAS STOCK I N TRADE AND NOT CAPITAL ASSETS. IT WAS ALSO POINTED OUT THAT TH E DEVELOPMENT OF THE PLOTS WERE STARTED FROM 1998 AS STATED IN THE G IDC LETTER DATED 27-01-2005. THEREFORE, IT WAS POINTED OUT THAT THER E IS CHANGE IN FACTS. THE HON'BLE TRIBUNAL IN THE EARLIER YEAR PRO CEEDED ON THE GROUND THAT THE ASSESSEE IS IN ACQUISITION OF CAPIT AL ASSETS. IN FACT, THE ASSESSEE WAS IN ACQUISITION OF STOCK IN TRADE. THE HON'BLE TRIBUNAL ERRED IN DISMISSING THE APPEAL FOR THE YEA RS FROM A.Y. 1998-1999 TO A.Y. 2001-2002 SINCE THE HON'BLE TRIBU NAL TREATED THE ACQUISITION OF STOCK IN TRADE AS ACQUISITION OF CAPITAL ASSETS ERRONEOUSLY. THEREFORE, IT WAS PLEADED THAT THERE W AS CHANGE IN FACTS AND THE EARLIER YEAR TRIBUNAL ORDER NEED NOT BE FOLLOWED. THIS ASPECT WAS CLEARLY UNDERSTOOD AND FOLLOWED BY HON'BLE J.M. THEREFORE, THE HON'BLE J.M. AT THE TIME OF HEARING POINTED OUT THE DECISION OF STYLER INDIA (P) LTD. V/S. JCIT 113 ITD 55 (PUNE) TM WHICH IS ALSO NOT CONSIDERED, THEREFORE THE STRESS WAS MADE BY MAKING REFERENCE TO LETTER DATED 27-01-2005 BY GIDC . 5.1 AND WHEREAS HOWEVER THE HON'BLE TRIBUNAL T REATED THE SAME AS CAPITAL ASSETS EVEN FOR A.Y. 2002-2003 AND A.Y. 2003- 2004, THEREFORE THE HONBLE TRIBUNAL MISAPPRECIATED THE FACTS. HOWEVER, THE HON'BLE TRIBUNAL FAILED TO APPRECIATE THE FACTS. MIS- APPRECIATION OF FACTS IS A MISTAKE APPARENT FROM RE CORD. 5.2 THE HON'BLE TRIBUNAL DID NOT APPRECIATE THE FACTS AND MISDIRECTED ITSELF. IF THERE IS A FACTUAL MISTAKE, THE ORDER CAN BE RECTIFIED [CHAMPALAL CHOPRA V/S. STATE OF RAJASTHAN 257 ITR 74 (RAJ)]. NON-CONSIDERATION OF THE MATERIAL ON RECORD IS THE MISTAKE APPARENT FROM RECORD [CIT V/S. MITHALAL 158 ITR 755 (MP)]. WHEN PREJUDICE RESULT FROM AN ORDER ATTRIBUTABLE TO TRIBUNAL'S MISTAKE, ERROR OR OMISSION, THEN IT IS DUTY OF TRIB UNAL TO SET IT RIGHT [HONDA SIEL POWER PRODUCTS LTD. V/S. CIT 165 TAXMAN 307 (SC)]. 6. THE HON'BLE TRIBUNAL HELD THAT CASE OF SA RABHAI MANAGEMENT AND E FUNDS WERE NOT APPLICABLE SINCE TH E HON'BLE TRIBUNAL PROCEEDED ON THE FOOTING THAT THE ASSESSEE WAS ACQUIRING CAPITAL ASSETS BUT IT WAS ACTUALLY STOCK IN TRADE A ND NOT CAPITAL M.A.NOS.130, 131 /AHD/2012 4 ASSET AS WAS STRESSED CONTINUOUSLY DURING THE HEARI NG BY THE AR. THE ASSESSEE MADE EFFORTS FOR MARKETING AS CAN BE S EEN FROM NAME OF PERSONS WHO WERE OFFERED THE PLOT AND WHO PAID T HE DEPOSIT AND CLAIM REFUND TO SHOW THAT PLOTS WERE READY FOR ALLO TMENT [PAGE NO. 124 TO 171 OF PAPER BOOK- II DATED 13-09-2011]. SIM ILARLY, SARABHAI MANAGEMENT WAS RELIED SINCE THE FACTS OF T HE ASSESSEE AND THAT CASE ARE IDENTICAL. 7. AND WHEREAS THE HON'BLE TRIBUNAL HAS DISTI NGUISHED THE GUJARAT HIGH COURT DECISION IN THE CASE OF SARABHAI MANAGEMENT AND DELHI HIGH COURT JUDGMENT IN CASE OF E FUNDS. W HAT IS TO BE SEEN IS RATIO. THE KIND ATTENTION IS DRAWN DELHI HI GH COURT FULL BENCH DECISION IN THE CASE OF LACHMAN DASS BHATIA H INGWALA (P) LTD. V/S. ACIT 330 ITR 243. THE DELHI HIGH COURT OB SERVED AS UNDER: 'A JUDGMENT HAS TO BE READ IN CONTEXT, AND DISCERNI NG OF FACTUAL BACKGROUND IS NECESSARY TO UNDERSTAND THE STATEMENT OF PRINCIPLES LAID DOWN THEREIN. IT IS OBLIGATORY TO ASCERTAIN TH E TRUE PRINCIPLE LAID DOWN IN THE DECISION AND IT IS INAPPROPRIATE T O EXPAND THE PRINCIPLE TO INCLUDE WHAT HAS NOT BEEN STATED THERE IN. A DECISION IS ONLY AN AUTHORITY FOR WHAT IS ACTUALL Y DECIDES AND IT IS THE DUTY TO ASCERTAIN THE REAL CONCRETE OR RATIO DE CIDENDI, WHICH HAS BINDING EFFECT. MECHANICAL APPLICATION OF A DEC ISION TREATING AS A PRECEDENT WITHOUT APPRECIATING THE UNDERLYING PRINCIPLE IS NOT ALLOWABLE. ' 7.1 NON-CONSIDERATION OF JURISDICTIONAL HIGH C OURT DECISION IS ALSO A MISTAKE APPARENT FROM RECORD ACIT V/S. SAURA SHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR 146 (GUJ)] AFFIRM BY SC 305 ITR 227 AND HONDA SIEL POWER PRODUCTS LTD. V/S. CIT 295 ITR 466 SC. 8. IT IS NECESSARY THAT EVERY FACT FOR AGAINS T THE ASSESSEE MUST HAVE BEEN CONSIDERED WITH DUE CARE BY THE TRIBUNAL AND IT MUST HAVE GIVEN THE FINDINGS IN A MANNER WHICH WOULD CLE ARLY INDICATE WHAT WERE THE QUESTIONS WHICH AROSE FOR DETERMINATI ON, WHAT WAS THE EVIDENCE PRO AND CONTRA IN REGARD TO EACH ONE O F THEM AND WHAT WERE THE FINDINGS WHICH ON THE EVIDENCE ON REC ORD BEFORE IT - RAMESHCHANDRA M. LUTHRA V/S. ACIT 257 ITR 460 (GUJ) . 8.1 THE CONCLUSION REACHED BY THE TRIBUNAL SHOULD N OT BE COLORED BY ANY IRRELEVANT CONSIDERATIONS OR MATTERS OF PREJ UDICE AND IF THERE ARE ANY CIRCUMSTANCES WHICH REQUIRED TO BE EX PLAINED BY THE ASSESSEE, THE ASSESSEE SHOULD BE GIVEN AN OPPORTUNI TY OF DOING SO. ON NO ACCOUNT WHATEVER SHOULD THE TRIBUNAL BASE ITS FINDINGS ON M.A.NOS.130, 131 /AHD/2012 5 SUSPICIOUS, CONJUNCTURES OR SURMISES NOR SHOULD IT ACT ON NO EVIDENCE AT ALL OR IMPROPER REJECTIONS OF MATERIAL AND RELEVANT EVIDENCE OR PARTLY ON EVIDENCE AND PARTLY ON SUSPIC IOUS, CONJUNCTURES OR SURMISES- OMAR SALAY MOHAMED SAIT V /S. CIT 37 ITR 151-170 (SC). 8.2 THE PROCEDURE REQUIRED TO BE ADOPTED BY TH E TRIBUNAL SO AS TO ENSURE THAT THE ORDER IS AN APPELABLE ORDER, MUS T BE ONE WHICH REFLECTS NOT ONLY ITS CONCLUSION, BUT THE DECISION MAKING PROCESS ALSO. REASONS, HOWEVER BRIEF ARE THE SOUL AND BACKB ONE OF AN ORDER -S.J. & S.P. FAMILY TRUST V/S. DCIT 277 ITR 5 57 (GUJ). 8.3 EVERY JUDICIAL / QUASI-JUDICIAL BODY / AUTH ORITY MUST PASS A REASONED ORDER WHICH SHOULD REFLECT THE APPLICATION OF MIND OF THE CONCERNED AUTHORITY TO THE ISSUES / POINTS RAISED B EFORE IT. THE REQUIREMENT OF RECORDING REASONS IN AN IMPORTANT SA FEGUARD TO ENSURE OBSERVANCE OF THE RULE OF LAW. IT INTRODUCES CLARITY, CHECKS THE INTRODUCTION OF EXTRANEOUS OR IRRELEVANT CONSID ERATIONS AND MINIMIZES ARBITRARINESS IN THE DECISION MAKING PROC ESS - CIT V/S. PALWAL CO.OP. SUGAR MILLS LTD. 284 ITR 153 (P&H). 8.4 NON-CONSIDERATION OF MATERIAL ON RECORD IS APPARENT MISTAKE ON RECORD [CIT V/S. MITHALAL ASHOK KUMAR 158 ITR 75 5 (MP) AND ACIT V/S. SAURASHTRA KUTCH STOCK EXCHANGE LTD. 262 ITR 146 (GUJ)]. 9. YOUR HONOURS ARE THEREFORE PRAYED TO MODIF Y / RECALL THE ORDER. PLACE : GANDHINAGAR DATE : 25-06-2012 DIRECTOR GGDCL. GANDHINAGAR 2. SINCE THE CONTENTS OF 2 ND MISCELLANEOUS APPLICATION NO.131/AHD/2012 FOR ASSESSMENT YEAR 2003-04 ARE IDE NTICAL, THE SAME ARE NOT REPRODUCED FOR THE SAKE OF BREVITY. BOTH THE M ISCELLANEOUS APPLICATIONS WERE HEARD TOGETHER AND ARE BEING DISP OSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 3. LD. A.R. OF THE ASSESSEE REITERATED THE SAME ARG UMENTS WHICH ARE IN THE MISCELLANEOUS APPLICATION. LD. D.R. OPPOSED TH E MISCELLANEOUS APPLICATIONS. IT WAS CONTENDED THAT THE TRIBUNAL D OES NOT HAVE ANY M.A.NOS.130, 131 /AHD/2012 6 POWERS OF REVISION AND WHAT IS REQUIRED BY THE ASSE SSEE IS FOR REVISION OF THE TRIBUNAL ORDER AND NO APPARENT MISTAKE HAS BEEN ESTABLISHED. THE LD. D.R. HAS ALSO SUBMITTED WRITTEN SUBMISSIONS WHICH A RE REPRODUCED AS UNDER FOR THE SAKE OF READY REFERENCE: CASE LAW NO.L ITAT DOES NOT HAVE ANY POWERS OF REVIEW. IN THE CAS E OF 288 ITR 297 (ALLAHABAD HC), CIT VS KAMAL BHAI ISMILJI, TWO PROPOSITIONS OF LAW WERE LAID DOWN: 1. TRIBUNAL HAS NO POWER TO REVIEW ITS ORDER 2. NO MISCELLANEUS APPLICATION CAN BE FILED ON AN EARLIER MISCELLANEOUS APPLICATION. THE RELEVANT PORTION OF THE ORDER IS CITED BELOW: '7. HAVING GIVEN OUR ANXIOUS CONSIDERATION TO VARIO US SUBMISSIONS MADE BY THE LEARNED COUNSEL FOR THE PARTIES,! WE AR E OF THE CONSIDERED OPINION THAT EVEN THOUGH THE TRIBUNAL HA S INHERENT POWER TO RECALL EX PARTE ORDER ON SUFFICIENT CAUSE BEING SHOWN BY EITHER OF THE PARTIES, IT HAS NO POWER TO REVIEW. I T IS WELL-SETTLED THAT THE TRIBUNAL HAS NO INHERENT POWER TO REVIEW. THE POWER TO REVIEW HAS TO BE EXPRESSLY CONFERRED BY THE STATUTE . IN THE PRESENT CASE, WE FIND THAT NO POWER OF REVIEW HAS BEEN CONF ERRED UPON THE TRIBUNAL AND I ONLY A POWER TO RECTIFY THE MISTAKE APPARENT ON THE RECORD HAS BEEN CONFERRED UNDER SECTION 254(2) OF THE ACT. FRO M A PERUSAL OF THE ORDER DATED 27-3-1984, REPRODUCED ABOVE, IT IS CLEAR THAT THE TRIBUNAL HAD APPLIED ITS MIND ON THE APPLICATIONS F ILED BY THE RESPONDENT- ASSESSEE SEEKING RECALL OF THE ORDER DA TED 31-1-1984 AND HAD NOT FOUND THE GROUNDS SUFFICIENT FOR! RECAL LING ITS ORDER AND CONSEQUENTLY HAD REJECTED THE SAID APPLICATIONS . THE ORDER! DATED 17-5-1985 DOES NOT DEAL WITH ANY MISTAKE HAVI NG BEEN COMMITTED BY THE TRIBUNAL IN THE ORDER DATED 27-3-1 984. ON THE OTHER HAND, IT DECIDED THE APPLICATIONS DE NOVO AND RECALLED ITS ORDER DATED 31-1-1984 ON THE GROUND THAT THE RESPON DENT COULD NOT BE PRESENT ON ACCOUNT OF REASONABLE AND SUFFICIENT CAUSE. THIS VIRTUALLY AMOUNTS TO REVIEW OF THE ORDER DATED 27-3 -1984, WHICH IS NOT PERMISSIBLE UNDER LAW.' CASE LAW IMO.2 M.A.NOS.130, 131 /AHD/2012 7 IN THE CASE OF CIT VS RAMESH ELECTRIC AND TRADING C O (BOM HC), 203 ITR 497, IT HAS BEEN HELD AS FOLLOWS: I 6, ............CLEARLY, THIS COULD NOT HAVE BEEN DO NE IN THE EXERCISE OF ANY POWER OF RECTIFICATION. IN THE PRESENT CASE, IN THE FIRST OR DER, THERE IS NO MISTAKE WHICH IS APPARENT FROM THE RECORD AT ALL. J THE TRIBUNAL WAS REQUIRED TO DECIDE WHETHER THE COMMISSION PAYME NT OF RS. 54,000/ WAS DEDUCTIBLE UNDER SECTION 37 OF THE INCO ME-TAX ACT. AFTER EXAMINING THE CIRCUMSTANCES, THE TRIBUNAL CAM E TO THE CONCLUSION THAT IT WAS NOT SO DEDUCTIBLE. THE TRIBU NAL CANNOT, IN EXERCISE OF ITS POWER OF RECTIFICATION, LOOK INTO S OME OTHER CIRCUMSTANCES WHICH WOULD SUPPORT OR NOT SUPPORT IT S CONCLUSION SO ARRIVED AT. THE MISTAKE WHICH THE TRIBUNAL IS EN TITLED TO CORRECT IS NOT AN ERROR OF JUDGMENT BUT A MISTAKE WHICH IS APPARENT FROM THE RECORD ITSELF. NO SUCH MISTAKE WAS APPARENT FRO M THE RECORD. IN FACT, WE DOUBT IF THIS SORT OF AN EXERCISE COULD HA VE BEEN DONE BY THE TRIBUNAL EVEN IF IT HAD THE POWER OF REVIEW. TH E TRIBUNAL HAS, PATENTLY, FAR EXCEEDED ITS JURISDICTION UNDER SECTI ON 254(2) OF THE INCOME-TAX ACT IN REDECIDING THE ENTIRE DISPUTE WHI CH WAS BEFORE IT IN THIS FASHION, AND THE TRIBUNAL HAS COMMITTED A G ROSS AND INEXPLICABLE ERROR FOR REASONS WHICH WE FAIL TO UND ERSTAND. 7. MR. INAMDAR, LEARNED ADVOCATE FOR THE ASSESSEE, DREW OUR ATTENTION TO A JUDGMENT OF THE MADHYA PRADESH HIGH COURT IN THE CASE OF CITV. MITHAFAL ASHOK KUMAR [1986] 158 ITR 7 55. THE MADHYA PRADESH HIGH COURT SAID THAT THE TRIBUNAL CA N CORRECT ITS MISTAKE BY RECTIFYING THE SAME IN CASE IT IS BROUGH T TO ITS NOTICE THAT THE MATERIAL WHICH WAS ALREADY ON RECORD BEFOR E DECIDING THE APPEAL ON MERITS WAS NOT CONSIDERED BY IT. IT, HOWE VER, SAID THAT THIS WILL DEPEND ON THE FACTS OF EACH CASE. AND WHE THER IT AMOUNTS TO A REVIEW OR RECTIFICATION WILL DEPEND ON THE FAC TS OF EACH CASE. IN OUR VIEW, THESE WIDE OBSERVATIONS DO NOT ACCORD WIT H THE DECISION OF THE SUPREME COURT ON THIS POINT IN T.S. BALARAM 'S CASE (SUPRA). SIMILARLY, THE DECISION OF THE ALLAHABAD HIGH COURT IN THE CASE OF LAXMI ELECTRONIC CORPORATION LTD. V. CIT [1991] 188 ITR 398 TO THE EFFECT THAT IF THE TRIBUNAL FAILS OR OMITS TO D EAL WITH AN IMPORTANT CONTENTION AFFECTING THE MAINTAINABILITY/ MERITS OF AN APPEAL, IT MUST BE DEEMED TO BE A MISTAKE APPARENT FROM THE RECORD WHICH CAN BE RECTIFIED BY THE TRIBUNAL BY IT S SUBSEQUENT ORDER, IS ALSO, IN OUR VIEW, IN THE TEETH OF THE SU PREME COURT M.A.NOS.130, 131 /AHD/2012 8 JUDGMENT IN THE CASE OF T.S. BALARAM'S (SUPRA). IN FACT, WE FIND THAT THE T.S. BALARAM'S (SUPRA}, WAS NOT BROUGHT TO THE ATTE NTION OF THE ;IDED THE ABOVE CASE. IN OUR VIEW, THE POWER OF REC TIFICATION DECISION IN THE CASE OF LEARNED JUDGES WHO DE UNDER SECTION 254(2) OF THE INCOME-TAX ACT CAN BE E XERCISED ONLY WHEN THE MISTAKE WHICH IS SOUGHT TO BE RECTIFIED IS AN OBVIOUS AND PATENT MISTAKE WHICH IS APPARENT FROM THE RECORD, A ND NOT A MISTAKE WHICH REQUIRES TO BE ESTABLISHED BY ARGUMEN TS AND A LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY CONCEIVABLY BE TWO OPINIONS, AS HAS BEEN SHOWN IN T HE PRESENT CASE. FAILURE BY THE TRIBUNAL TO CONSIDER AN ARGUME NT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON THE RECORD, ALTHOUGH IT MAY BE AN ERROR OF JUDGMENT. IN THE PRESENT CASE, THE ALLEGED FAILURE, AT LEAST ON ONE COUNT, IS ATTRIBUTED BY THE ASSESSEE TO THE INCOME-TAX OFFICE R AND NOT THE TRIBUNAL. IN OUR VIEW, THE TRIBUNAL HAD NO JURISDIC TION UNDER SECTION 254(2) TO PASS THE SECOND ORDER. CASE LAW NO.3 IN THE CASE OF HOMI MEHTA & SONS P LTD VS DOT, 63 I TD 15, THE HON'BLE ITAT, MUMBAI, HAS HELD AS UNDER: 7. WE HAVE CONSIDERED THE SUBMISSIONS ADVANCED BEFO RE US AND HAVE GONE THROUGH THE DECISIONS CITED AT THE BAR. I T IS UNDISPUTED THAT THE POINT WHICH IS BEING CANVASSED THROUGH THE MISCELLANEOUS APPLICATION WAS ARGUED AT THE TIME OF HEARING OF TH E APPEAL AND THE ASSESSEE'S STAND ON THE POINT WAS SPECIFICALLY REJE CTED. SINCE THE TRIBUNAL HAD ALREADY TAKEN A CONSCIOUS DECISION ON THE POINT, WE ARE UNABLE TO AGREE THAT THERE IS ANY MISTAKE APPAR ENT FROM THE RECORD, WHICH NEEDS RECTIFICATION. IT IS WELL-SETTL ED THAT THE POWER OF RECTIFICATION UNDER SECTION 254(2) OF THE ACT CA N BE EXERCISED ONLY WHEN THE MISTAKE, WHICH IS SOUGHT TO BE RECTIFIED, IS AN OBVIOUS AND PATENT MISTAKE, WHICH IS APPARENT FROM THE RECORD, AND NOT A MISTAK E WHICH REQUIRES TO BE ESTABLISHED BY ARGUMENTS AND A LONG DRAWN PROCESSING OF REASONING ON POINTS ON WHICH THERE MA Y CONCEIVABLY BE TWO OPINIONS. .... CASE LAW NO.4 IN THE RECENT CASE OF CIT V. PEARL WOOLLEN MILLS [2 010] 330 ITR 164/ 191 TAXMAN 286 (PUNJ. & HAR.), IT WAS HELD AS UNDER: | 'HELD, THAT THE TRIBUNAL COULD NOT READJUDICATE THE MATTER UNDER SECTION 254(2). IT IS WELL SETTLED THAT A STATUTORY AUTHORITY CANNOT M.A.NOS.130, 131 /AHD/2012 9 EXERCISE POWER OF REVIEW UNLESS SUCH POWER IS EXPRE SSLY CONFERRED. THERE WAS NO EXPRESS POWER OF REVIEW CONFERRED ON T HE TRIBUNAL. EVEN OTHERWISE, THE SCOPE OF REVIEW DID NOT EXTENT TO REHEARING A CASE ON THE MERITS. NEITHER BY INVOKING INHERENT PO WER NOR THE PRINCIPLE OF MISTAKE OF COURT NOT PREJUDICING A LIT IGANT NOR BY INVOLVING DOCTRINE OF INCIDENTAL POWER, COULD THE T RIBUNAL REVERSE A DECISION ON THE MERITS. THE TRIBUNAL WAS NOT JUST IFIED IN RECALLING ITS PREVIOUS FINDING RESTORING THE ADDITION, MORE S O WHEN AN APPLICATION FOR THE SAME RELIEF HAD BEEN EARLIER DI SMISSED.' CASE LAW NO.5 IN A VERY RECENT CASE (21.09. (URO), THE HON'BLE 'B ' BENCH (A) FIRSTLY, THE SCOPE 2012) OF SMT. RUHINA AHMED, 26 TAXMANN.COM 223 / 54 SOT 123 ITAT HYDERABAD HAS PASSED ORDER AS FOLLOWS: '12. THUS THE SCOPE AND AMBIT OF APPLICATION U/S. 2 54(2) IS AS FOLLOWS: ; AND AMBIT OF APPLICATION OF S. 254(2) OF IT ACT I S RESTRICTED TO RECTIFICATION OF THE MISTAKES APPARENT FROM THE REC ORD. (B) SECONDLY, THAT NO PARTY APPEARING BEFORE THE TR IBUNAL SHOULD SUFFER ON ACCOUNT OF ANY MISTAKE COMMITTED BY THE T RIBUNAL AND IF THE PREJUDICE HAS RESULTED TO THE PARTY, WHICH PREJ UDICE IS ATTRIBUTABLE TO THE TRIBUNAL'S MISTAKE/ERROR OR OMI SSION, AND WHICH AN ERROR IS A MANIFEST ERROR, THEN THE TRIBUNAL WOU LD BE JUSTIFIED IN RECTIFYING ITS MISTAKE. THE 'RULE OF PRECEDENT' IS AN IMPORTANT ASPECT OF LEGAL CERTAINTY IN THE RULE OF LAW AND TH AT PRINCIPLE IS NOT OBLITERATED BY S. 254(2) OF THE ACT AND NON-CONSIDE RATION OF PRECEDENT BY THE TRIBUNAL CAUSES A PREJUDICE TO THE ASSESSEE. (C) THIRDLY, POWER TO RECTIFY A MISTAKE IS NOT EQUI VALENT TO A POWER TO REVIEW OR RECALL THE ORDER SOUGHT TO BE RECTIFIE D. T (D) FOURTHLY, UNDER S. 254(2) AN OVERSIGHT OF A FAC T CANNOT CONSTITUTE AN APPARENT MISTAKE RECTIFIABLE UNDER TH E SECTION. (E) FIFTHLY, FAILURE ON THE PART OF THE TRIBUNAL TO CONSIDER AN ARGUMENT ADVANCED BY EITHER PARTY FOR ARRIVING AT A CONCLUSION IS NOT AN ERROR APPARENT ON RECORD, ALTHOUGH IT MAY BE AN ERROR, OF JUDGEMENT. (/) SIXTHLY, EVEN IF ON THE BASIS OF A WRONG CONCLU SION THE TRIBUNAL HAS NOT ALLOWED A CLAIM OF THE PARTY IT WILL NOT BE A GROUND FOR MOVI NG AN APPLICATION UNDER S. 254(2) M.A.NOS.130, 131 /AHD/2012 10 OF THE ACT. (G) LASTLY, IN THE GAR3 OF AN APPLICATI ON FOR RECTIFICATION UNDER S. 254(2) THE ASSESSEE CANNOT BE PERMITTED TO REOPEN AND REARGUE THE WHOLE MATTER AS THE SAME IS BEYOND THE SCOPE OF S. 254(2) OF THE IT ACT .' 4. FROM THE CONTENTS OF THE MISCELLANEOUS APPLICATI ON AS REPRODUCED ABOVE, IT IS SEEN THAT THE MAIN ALLEGATION OF THE A SSESSEE IS THIS THAT THE TRIBUNAL SHOULD NOT HAVE FOLLOWED EARLIER TRIBUNAL ORDER IN ASSESSEES OWN CASE IN I.T.A. NOS. 434/AHD/2004, 2244-2246/AHD /2006 DATED 16.11.2007 FOR ASSESSMENT YEARS 1998-1999 TO 2001-0 2. IT IS NOTED BY THE TRIBUNAL IN THE IMPUGNED ORDER THAT THIS WAS THE SU BMISSIONS OF THE LD. A.R. IN THE COURSE OF HEARING OF THESE APPEALS THAT THE EARLIER TRIBUNAL ORDER SHOULD NOT BE FOLLOWED BY THE TRIBUNAL BECAUS E OF THIS REASON ALONE THAT A LETTER DATED 27.01.2005 ISSUED BY GUJARAT IN DUSTRIAL DEVELOPMENT CORPORATION (GIDC) TO THE ASSESSEE COMPANY WAS PROD UCED BEFORE THE A.O. IN THIS YEAR FOR THE FIRST TIME AND THE SAME W AS NOT PRODUCED IN THOSE EARLIER YEARS EVEN BEFORE THE TRIBUNAL. THIS ASPEC T WAS DULY CONSIDERED BY THE TRIBUNAL IN THE IMPUGNED ORDER AS NOTED BY T HE TRIBUNAL IN PARA 9 OF THE IMPUGNED ORDER WHERE THE TRIBUNAL HAS REPROD UCED PARA 6 OF EARLIER TRIBUNAL ORDER FOR THE ASSESSMENT YEAR 1998-99 TO 2 001-02 AND IN THAT PARA OF THE EARLIER TRIBUNAL ORDER, THE TRIBUNAL HAD REP RODUCED PARA 3.10 OF THE ORDER OF LD. CIT(A), WHERE HE HAS GIVEN A FINDING T HAT EVEN AS ON 31.03.2002, NO GROWTH CENTRE WAS COMPLETELY SET UP AND THE APPELLANT HAD ONLY MADE ADVANCE PAYMENT OF RS.18,69,41,210/- TO G IDC FOR THE PURPOSE OF SETTING UP OF GROWTH CENTRE AND THIS AMO UNT WAS SHOWN UNDER THE HEAD LOANS AND ADVANCES AND EVEN THE DETAILS OF EXPENDITURE WERE PENDING FINALIZATION BETWEEN THE APPELLANT CORPORAT ION AND GIDC. THIS FINDING OF LD. CIT(A) COULD NOT BE CONTROVERTED BY THE LD. A.R. IN THE M.A.NOS.130, 131 /AHD/2012 11 COURSE OF HEARING OF THESE APPEALS AND EVEN IN THE COURSE OF HEARING OF THESE MISCELLANEOUS APPLICATIONS. SINCE THE ASSESS EE HAS GIVEN ONLY ADVANCE PAYMENT TO GIDC AND THE SAME IS BEING SHOWN IN THE BALANCE SHEET OF THE ASSESSEE COMPANY AS LOANS AND ADVANCES , IT CANNOT BE SAID THAT ANY CAPITAL ASSET OR ANY RAW MATERIAL WAS ACQU IRED BY THE ASSESSEE TILL THIS DATE UNTIL AND UNLESS THE ASSESSEE SHOWS SOME POSITIVE EVIDENCE IN THIS REGARD. THIS IS NOT THE OBJECTION IN THE MISC ELLANEOUS APPLICATION THAT ANY POSITIVE EVIDENCE IN THIS REGARD WAS FURNISHED ON RECORD BEFORE THE TRIBUNAL TO SHOW THAT ANY CAPITAL ASSET OR RAW MATE RIAL WAS IN FACT ACQUIRED BY THE ASSESSEE UP TO 31.03.2003 AND THE P AYMENT MADE BY THE ASSESSEE COMPANY TO GIDC IS NOT MERELY AN ADVANCE P AYMENT. IN THE ABSENCE OF ANY POSITIVE EVIDENCE, ESTABLISHING THAT THE ASSESSEE HAS IN FACT ACQUIRED ANY CAPITAL ASSET OR ANY RAW MATERIAL ON O R BEFORE 31.03.2003, IT CANNOT BE SAID THAT THE FACTS IN THE PRESENT TWO YE ARS ARE DIFFERENT THAN THE FACTS IN THE EARLIER FOUR YEARS FOR WHICH THE TRIBU NAL HAD ALREADY DECIDED THE MATTER AGAINST THE ASSESSEE AS PER THE TRIBUNAL DECISION CITED ABOVE. THE ONLY DIFFERENCE POINTED OUT IN THE PRESENT YEAR S BEFORE THE AUTHORITIES BELOW AND BEFORE THE TRIBUNAL IN THE COURSE OF HEAR ING OF THE APPEALS IS THIS THAT THE LETTER DATED 27.01.2005 ISSUED BY GID C WAS BROUGHT ON RECORD BY THE ASSESSEE BEFORE THE A.O. IN THE PRESE NT YEAR FOR THE FIRST TIME. NOW, WE FIND THAT THIS LETTER AND THIS ARGUM ENT WERE ALSO DULY CONSIDERED BY THE TRIBUNAL IN THE IMPUGNED ORDER. HENCE, THIS IS NOT THE CASE OF NON CONSIDERATION OF ANY MATERIAL OR ANY AR GUMENT. THE SAME LETTER DATED 27.01.2005 IS AVAILABLE ON PAGE 16 OF THE PAPER BOOK AND THE SAME IS REPRODUCED BELOW FOR THE SAKE OF READY REFE RENCE: DATE 27.01.2005 TO, 'THE CHIEF ADMINISTRATIVE OFFICER, M.A.NOS.130, 131 /AHD/2012 12 GUJARAT GROWTH CENTRE DEVELOPMENT CORPORATION LTD. BLOCK NO.5, 4* FLOOR, UDYOG BHAVAN, SECTOR NO. 11 GANDHINAGAR-382017, SUB REF: EXPENDITURE INCURRED FOR GUJARAT GROWTH CENTRE DEVELOPMENT CORPORATE >N LTD,, 100 HECT. LAND IN EN GINEERING ZONE AT /AGARA - VILAYAT. THIS OFFICE VERNACULAR LETTER NO.GIDC/EE/BRH/PB/82, OATED:-12/01/2005. SIR. IN CONTINUATION OF THE LETTER UNDER REFERENCE, IT I S TO INFORM THAT NECESSARY INFRASTRUCTURE LIKE; (I) ROAD, (II) WATER SUPPLY & (II) TELEPHONE EXCHANGE BUILDING WERE COMPLETED IN 1997- 1998 AND ALL INFRASTRUCTURE A GUJARAT GROWTH CENTRE DEVELOPM ENT CORPORATION LTD. WERE MADE AVAILABLE AND HENCE LAND IS AVAILABLE FOR ALLOTMENT. THANKING YOU. YOURS SINCERELY, ENCL: DETAILS OF EXPENDITURE. (M.P.CHAVDA) EXECUTIVE ENGINEER G.I.D.C ,BHARUCH. 5. FROM THE CONTENTS OF THE LETTER REPRODUCED ABOVE , IT COMES OUT THAT IT IS STATED BY GIDC IN THE LETTER THAT THE ASSESSE ES INFRASTRUCTURE WAS COMPLETED IN 1997-98 BUT EVEN IF THAT IS SO, IT WIL L NOT ALTER THIS POSITION THAT THE ASSESSEE HAS MADE ONLY ADVANCE PAYMENT TO GIDC AND THEREFORE, MERE ADVANCE PAYMENT CANNOT BE CONSIDERED AS ACQUIS ITION OF ANY CAPITAL ASSET OR RAW MATERIAL EVEN IF SUCH PROPERTY WHICH I S DESIRED TO BE ACQUIRED BY THE ASSESSEE EITHER AS CAPITAL ASSET OR AS RAW MATERIAL IS LYING READY WITH THE SUPPLIER. THIS LETTER DATED 27.01.2 005 DOES NOT SATISFY THIS REQUIREMENT THAT THE PROPERTY IN QUESTION WAS ACTUA LLY ACQUIRED BY THE ASSESSEE EITHER AS CAPITAL ASSET OR AS RAW MATERIAL BY 31.03.2003 AND HENCE, THE FINDING OF THE TRIBUNAL IN THE IMPUGNED ORDER THAT THIS LETTER M.A.NOS.130, 131 /AHD/2012 13 DATED 27.01.2005 DOES NOT MAKE ANY CHANGE IN THE FA CTS DURING THESE TWO YEARS ALSO, IS NOT AMOUNTING TO ANY APPARENT MISTAK E IN THE TRIBUNAL ORDER AND HENCE, IN OUR CONSIDERED OPINION, THERE IS NO A PPLICABILITY OF SECTION 254(2) OF THE ACT IN THE PRESENT CASE. 6. NOW, WE ALSO CONSIDER VARIOUS JUDGEMENTS ON WHIC H RELIANCE HAS BEEN PLACED BY THE ASSESSEE IN THE MISCELLANEOUS AP PLICATION AS REPRODUCED ABOVE. REGARDING VARIOUS JUDGEMENTS CIT ED BY THE ASSESSEE IN PARA 5.2 OF THE MISCELLANEOUS APPLICATION, WE WOULD LIKE TO OBSERVE THAT THERE IS NO DISPUTE ON THIS PROPOSITION THAT IF THE RE IS A FACTUAL MISTAKE IN THE TRIBUNAL ORDER, THE ORDER CAN BE RECTIFIED BUT UNTIL AND UNLESS, THE ASSESSEE ESTABLISHES THAT THE TRIBUNAL DID NOT APPR ECIATE THE FACTS OR MISDIRECTED ITSELF AND THERE IS A FACTUAL MISTAKE I N THE TRIBUNAL ORDER, NO JUDGEMENT ON THIS ASPECT CAN BE HELPFUL TO THE ASSE SSEE. THEREFORE, THESE JUDGEMENTS ARE NOT RELEVANT AT ALL BECAUSE IT IS NO T ESTABLISHED BY THE ASSESSEE THAT THERE IS ANY FACTUAL MISTAKE IN THE T RIBUNAL ORDER. 7. IN PARA 6 OF THE MISCELLANEOUS APPLICATION, IT I S STATED BY THE ASSESSEE THAT AS PER PAGES 124 171 OF THE PAPER B OOK-II, THERE ARE CERTAIN REQUESTS FROM VARIOUS PERSONS REGARDING REF UND AND ON THIS BASIS, IT IS THE ARGUMENT OF THE ASSESSEE THAT THESE CLAIM S FOR REFUND SHOW THAT THE PLOTS WERE READY FOR ALLOTMENT. IN OUR CONSIDE RED OPINION, THIS AUGMENT IS ALSO DEVOID OF ANY MERIT. ON PAGE 125 O F THE PAPER BOOK IS A LIST OF 16 PERSONS AND ON PAGE 121 OF THE PAPER BOO K IS A COPY OF COMMUNICATION OF THE ASSESSEE COMPANY THAT THE AMOU NT IS RETURNED TO ALL 16 APPLICATIONS AS PER THE RESOLUTION. THEREAFTER, ON PAGE 126 OF THE PAPER BOOK, IS THE RECEIPT ISSUED BY THE ASSESSEE C OMPANY ON 07.09.1999 IN THE NAME OF SHRI SHELESH B PANCHAL WHOSE NAME IS APPEARING AT SL. M.A.NOS.130, 131 /AHD/2012 14 NO.1 OF PAGE 125 OF THE PAPER BOOK BEING THE LETTER OF REFUND. IT IS ALSO IMPORTANT THAT EVEN IF THIS ADVANCE WAS RECEIVED FR OM THIS PERSON, THE SAME WAS RECEIVED ON 07.09.1999 AND HENCE, THERE IS NO CHANGE IN FACTS IN THE PRESENT TWO YEARS. EVEN THE LETTER ON PAGE 124 OF THE PAPER BOOK IS DATED 17.05.2000 REGARDING REFUND TO 16 PERSONS WHI CH ALSO FALLS IN ASSESSMENT YEAR 2001-02 AND NOT IN THESE TWO YEARS WHICH ARE BEFORE US AND HENCE, THESE PAGES IN THE PAPER BOOK FROM PAGE 124-171 OF THE PAPER BOOK DO NOT SHOW ANY DIFFERENCE IN FACTS IN THE PRE SENT TWO YEARS. 8. IN PARA 7 OF THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAD SUBMITTED THAT THE TRIBUNAL HAS DISTINGUISHED THE J UDGEMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF SARABHAI MANAGEME NT AND OF HONBLE DELHI HIGH COURT JUDGEMENT IN THE CASE OF E FUNDS. THE ARGUMENT OF THE ASSESSEE IS THIS THAT WHAT IS TO BE SEEN IS THE RATIO AND THEREAFTER ASSESSEE HAS CITED A DECISION OF HONBLE DELHI HIGH COURT (FULL BENCH) RENDERED IN THE CASE OF LACHMAN DASS BHATIA HINGWAL A (P) LTD. VS ACIT AS REPORTED IN 330 ITR 243 AND THE ASSESSEE HAS REP RODUCED RELEVANT OBSERVATIONS OF THE HONBLE DELHI HIGH COURT AS PER WHICH IT IS STATED BY HONBLE DELHI HIGH COURT THAT A JUDGEMENT HAS TO BE READ IN CONTEXT, AND DISCERNING OF FACTUAL BACKGROUND IS NECESSARY TO UN DERSTAND THE STATEMENT OF PRINCIPLES LAID DOWN THEREIN. HENCE, IT IS SEEN THAT THE ASSESSEE ITSELF HAS REPLIED THE QUESTION RAISED BY IT IN THIS PARA. AS PER THIS JUDGEMENT OF HONBLE DELHI HIGH COURT (FULL BENCH), THE CONTE XT OF FACTUAL BACKGROUND IS NECESSARY TO UNDERSTAND THE STATEMENT OF THE PRINCIPLES LAID DOWN THEREIN. IN THE IMPUGNED ORDER, THE TRIBUNAL HAS DULY CONSIDERED BOTH THESE JUDGEMENTS AND IT WAS FOUND THAT THE SAM E ARE NOT APPLICABLE BECAUSE THE FACTS ARE DIFFERENT IN THE PRESENT CASE AND IN THOSE TWO CASES AND, THEREFORE, AS PER THIS DECISION OF HONBLE DEL HI HIGH COURT CITED BY M.A.NOS.130, 131 /AHD/2012 15 THE ASSESSEE HAVING BEEN RENDERED IN THE CASE OF LA CHMAN DASS BHATIA HINGWALA (P) LTD. (SUPRA), THERE IS NO MISTAKE IN T HE TRIBUNAL ORDER ON THIS ACCOUNT ALSO. 9. THEREAFTER, IN PARA 7.1 OF THE MISCELLANEOUS APP LICATION, THE ASSESSEE HAS CITED CERTAIN DECISIONS IN SUPPORT OF THIS CONTENTION THAT NON CONSIDERATION OF JURISDICTIONAL HIGH COURTS DECISI ON IS A MISTAKE APPARENT FROM RECORD. THERE IS NO QUARREL ON THIS PROPOSITION ALSO BUT THE FACT IS THIS THAT THE ASSESSEE HAS NOT ESTABLISHED OR SHOWN THAT IN THE IMPUGNED TRIBUNAL ORDER, ANY DECISION OF HONBLE JU RISDICTIONAL HIGH COURT OR ANY OTHER AUTHORITY HAS NOT BEEN CONSIDERE D BY THE TRIBUNAL AND, THEREFORE, THESE JUDGEMENTS CITED BY THE ASSESSEE I N PARA 7.1 OF THE MISCELLANEOUS APPLICATION ARE ALSO NOT RELEVANT. 10. IN PARA 8 OF THE MISCELLANEOUS APPLICATION, THE ASSESSEE HAS RELIED ON THE JUDGEMENT OF HONBLE GUJARAT HIGH COURT REND ERED IN THE CASE OF RAMESHCHANDRA M LUTHRA VS ACIT AS REPORTED IN 257 I TR 460 IN SUPPORT OF THIS CONTENTION THAT THE TRIBUNAL MUST G IVE A FINDING IN A MANNER WHICH WOULD CLEARLY INDICATE WHAT WAS THE QU ESTION WHICH AROSE FOR DETERMINATION AND WHAT WAS THE EVIDENCE PRO AND CONTRA IN REGARD TO EACH ONE OF THEM AND WHAT WAS THE FINDING. WHEN WE EXAMINE THE IMPUGNED TRIBUNAL ORDER IN THE LIGHT OF THIS JUDGEM ENT OF HONBLE GUJARAT HIGH COURT, WE FIND THAT IN THE IMPUGNED OR DER, THE TRIBUNAL HAS DULY RECORDED THIS THAT THE ISSUE IN THE PRESENT TW O YEARS IS SQUARELY COVERED AGAINST THE ASSESSEE BY THE TRIBUNAL ORDER IN THE ASSESSEES OWN CASE FOR THE PRECEDING FOUR YEARS AND THE ONLY ARGU MENT MADE BY THE LD. A.R. WAS THIS THAT IN VIEW OF THE LETTER DATED 27.0 1.2005, AS REPRODUCED ABOVE, WHICH WAS BROUGHT ON RECORD IN THE PRESENT Y EAR; EARLIER TRIBUNAL ORDER SHOULD NOT BE FOLLOWED. THIS ASPECT WAS DULY CONSIDERED AND M.A.NOS.130, 131 /AHD/2012 16 DECIDED BY THE TRIBUNAL BY WAY OF GIVING CLEAR FIND ING THAT EVEN THIS LETTER DOES NOT MAKE ANY DIFFERENCE IN FACTS IN THE PRESEN T TWO YEARS BECAUSE OF THE REASON THAT AS PER THE UNCONTROVERTED FINDING O F LD. CIT(A) THAT ON 31.03.203, THE MONEY PAID BY THE ASSESSEE TO GIDC W AS ONLY AN ADVANCE PAYMENT AND WE HAVE SEEN THAT NO EVIDENCE HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE BEFORE THE AUTHORITIES BELOW OR BEF ORE THE TRIBUNAL IN THE COURSE OF HEARING OF THESE APPEALS OR EVEN IN THE C OURSE OF HEARING OF THESE MISCELLANEOUS APPLICATIONS TO SHOW THIS FACT THAT AMOUNT PAID BY THE ASSESSEE TO GIDC WAS NOT ADVANCE PAYMENT BUT SOME P ROPERTY WAS ACTUALLY ACQUIRED BY THE ASSESSEE ON OR BEFORE 31.0 3.2003 AND HENCE, IT IS CLEAR THAT THE TRIBUNAL HAS TAKEN DUE CARE TO CONSI DER ALL THE FACTS AND CLEAR FINDING IS GIVEN BY THE TRIBUNAL AFTER CONSID ERING ALL EVIDENCES PRO AND CONTRA AND, THEREFORE, THIS JUDGEMENT OF HONBL E HIGH COURT IS NOT RELEVANT IN THE PRESENT CASE. 11. IN PARA 8.1, IT IS SUBMITTED BY THE ASSESSEE TH AT THE CONCLUSION REACHED BY THE TRIBUNAL SHOULD NOT BE COLOURED BY A NY IRRELEVANT CONSIDERATION OR MATTER OF PREJUDICE. THERE IS NO QUARREL ON THIS PROPOSITION ALSO BUT THE ASSESSEE HAS TO ESTABLISH THAT THE CONCLUSION OF THE TRIBUNAL IS COLOURED BY ANY IRRELEVANT CONSIDER ATION OR THE MATER OF PREJUDICE. IN THE PRESENT CASE, THE ASSESSEE HAS N OT DONE SO AND HENCE, THIS ARGUMENT IS ALSO DEVOID OF ANY MERIT. 12. IN PARA 8.2 OF THE MISCELLANEOUS APPLICATION, I T IS STATED BY THE ASSESSEE THAT THE TRIBUNAL SHOULD NOT ONLY REFLECT THE CONCLUSION BUT THE DECISION MAKING PROCESS ALSO AND THERE MUST BE REAS ON. AS PER DISCUSSION IN THE ABOVE PARAS, IT IS CLEARLY SEEN T HAT IN THE IMPUGNED TRIBUNAL ORDER, REASON AS WELL AS DECISION MAKING P ROCESS IS ALSO PRESENT AND, THEREFORE, THIS ARGUMENT IS ALSO DEVOID OF ANY MERIT. M.A.NOS.130, 131 /AHD/2012 17 13. IN PARA 8.3 OF THE MISCELLANEOUS APPLICATION, I T IS THE SUBMISSION OF THE ASSESSEE THAT THE TRIBUNAL MUST PASS REASONED O RDER WHICH SHOULD REFLECT THE APPLICATION OF MIND TO THE ISSUE/ POINT S RAISED BEFORE IT. AGAIN THERE IS NO QUARREL ON THIS PROPOSITION ALSO BUT AS PER ABOVE DISCUSSION, IT IS SEEN THAT THE IMPUGNED ORDER PASSED BY THE TRIBU NAL IS A WELL REASONED ORDER AFTER APPLICATION OF MIND AND HENCE, THIS ARG UMENT IS ALSO DEVOID OF ANY MERIT. 14. IN PARA 8.4 OF THE MISCELLANEOUS APPLICATION, I T IS SUBMITTED BY THE ASSESSEE THAT NON CONSIDERATION OF MATERIAL ON RECO RD IS AN APPARENT MISTAKE. WE HAVE ALREADY DISCUSSED THAT ATTENTION OF THE TRIBUNAL WAS DRAWN TO PAGE 16 OF THE PAPER BOOK WHICH CONTAINS L ETTER DATED 27.01.2005 OF GIDC AND ON PAGE 124-171 OF THE PAPER BOOK REGARDING RECEIPT OF ADVANCES FROM SOME PARTIES AND REFUND TO THEM. ALL THESE PAGE WERE DULY CONSIDERED BY THE TRIBUNAL IN THE IMPUGNE D ORDER AND WE HAVE ALSO CONSIDERED AGAIN THE SAME IN THESE MISCELLANEO US APPLICATIONS ORDER AND HAVE FOUND THAT THERE IS NO MISTAKE IN THE IMPU GNED TRIBUNAL ORDER WITH REGARD TO THESE PAGES OF THE PAPER BOOK. AS P ER SUB-RULE 6 OF RULE 18 OF THE APPELLATE TRIBUNAL RULES 1963, DOCUMENTS WHICH ARE REFERRED TO OR RELIED UPON BY THE PARTIES DURING THE COURSE OF ARGUMENT SHALL ALONE BE TREATED AS PART OF RECORD OF THE TRIBUNAL. HENCE, REGARDING OTHER DOCUMENTS, IT CANNOT BE SAID THAT IT IS A MATERIAL ON RECORD WHICH WAS NOT CONSIDERED BY THE TRIBUNAL. HENCE, THIS ARGUMENT O F THE ASSESSEE IN PARA 8.4 OF THE MISCELLANEOUS APPLICATION IS ALSO DEVOID OF ANY MERIT. 15. IN THE COURSE OF HEARING OF THESE MISCELLANEOUS APPLICATIONS, RELIANCE WAS PLACED BY THE LD. A.R. ON A DECISION O F SPECIAL BENCH OF THE TRIBUNAL RENDERED IN THE CASE OF SARDAR SAROVAR N. LD. VS ACIT AS REPORTED IN 25 TAXMAN 198 (AHD.) AND IT WAS SUBMITT ED BY THE LD. A.R. M.A.NOS.130, 131 /AHD/2012 18 IN THE COURSE OF HEARING OF MISCELLANEOUS APPLICATI ONS THAT AS PER THE DECISION OF SPECIAL BENCH OF THE TRIBUNAL, THE BUSI NESS WAS SET UP IN THE PRESENT CASE ALSO. WE DO NOT FIND ANY MERIT IN THI S ARGUMENT OF THE LD. A.R. IN THIS DECISION OF SPECIAL BENCH OF THE TRIB UNAL, THE FACTS WERE THAT WATER WAS SUPPLIED TO MAIN CANAL DURING THE CURRENT YEAR AND REVENUE EXPENDITURE AFTER THIS DATE HAD NOT BEEN ALLOWED AS DEDUCTION. IN THAT CASE, THE OBJECT OF THE ASSESSEE CORPORATION WAS TO PROMOTE IRRIGATION AND WATER SUPPLY IN THE STATE AND IT WAS THE CLAIM OF T HE ASSESSEE THAT DURING THE YEAR UNDER CONSIDERATION, IT HAD STARTED ACTIVI TIES OF SUPPLYING WATER TO PEOPLE THROUGH ITS CANAL FROM NARMADA DAM AFTER CON NECTION AND THE ASSESSEE CLAIMED THAT ALL EXPENDITURE INCURRED BY I T FOR THE PURPOSE OF CARRYING OUT ITS BUSINESS SHOULD BE ALLOWED AS DEDU CTION. HENCE, AS PER THE FACTS OF THAT CASE, THE OBJECT OF THE ASSESSEE CORPORATION WAS DULY COMPLETED ON THE START OF FLOW OF WATER IN THE MAIN CANAL ALTHOUGH THE WATER COULD NOT REACH TO THE ENTIRE NET OF CANALS B UT IN THE PRESENT CASE, EVEN THE ACQUISITION OF THE PROPERTY WHETHER AS CAP ITAL ASSET OR STOCK IN TRADE, WAS NOT DONE BY THE ASSESSEE AND THE AMOUNT PAID BY THE ASSESSEE TO GIDC WAS ONLY AN ADVANCE AND NO EVIDENCE HAS BEE N BROUGHT ON RECORD BY THE ASSESSEE AT ANY STAGE BEFORE ANY AUTH ORITY TO SHOW THAT THE PROPERTY WAS IN FACT ACQUIRED BY THE ASSESSEE AND T HE AMOUNT PAID IS NOT A MERE ADVANCE PAYMENT AND, THEREFORE, THE FACTS IN T HE PRESENT CASE ARE DIFFERENT THAN THE FACTS IN THE CASE OF SARDAR SARO VAR NARMADA NIGAM LD. (SUPRA) AND HENCE, THIS DECISION OF SPECIAL BENCH O F THE TRIBUNAL IS NOT APPLICABLE IN THE PRESENT CASE. THE MAIN BASIS OF THIS DECISION OF SPECIAL BENCH OF THE TRIBUNAL WAS THIS THAT ASSESSEE BY SUP PLYING WATER HAD ACHIEVED THE PURPOSE FOR WHICH IT WAS ESTABLISHED. IN THE PRESENT CASE, THE ASSESSEE COULD NOT SHOW THAT THE ASSESSEE HAD A CHIEVED THE PURPOSE M.A.NOS.130, 131 /AHD/2012 19 FOR WHICH IT WAS ESTABLISHED AND, THEREFORE, THIS D ECISION OF SPECIAL BENCH OF THE TRIBUNAL IS NOT RELEVANT IN THE PRESENT CASE . 16. IN THE LIGHT OF ABOVE DISCUSSION, IT IS SEEN TH AT THERE IS NO APPARENT MISTAKE IN THE TRIBUNAL ORDER AND HENCE, NO RECTIFI CATION IS REQUIRED U/S 254(2) OF THE ACT. 17. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATI ONS OF THE ASSESSEE ARE DISMISSED. 18. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD./- SD./- (MUKUL KUMAR SHRAWAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 01/05/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 03/08.05.2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 10/05/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.10/5 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 10/05/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .